WALLER v. PERRY

Filing 11

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 9/30/2015; that the Magistrate Judge's Recommendation (Doc. 8 ) is ADOPTED. FURTHER that Respondent's Motion for Summary Judgment (Doc. 4 ) is GRANTED, that Petitio ner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1 ) is DISMISSED, and that this action is DISMISSED. FURTHER that Petitioner's request for an evidentiary hearing is DENIED for lack of good cause. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMES BENNETT WALLER, JR.,

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Petitioner,
v.
FRANK PERRY,
Respondent.

1:14CV763

ORDER
This matter is before this court for review of the
Recommendation filed on August 14, 2015, by the Magistrate Judge
in accordance with 28 U.S.C. § 636(b). (Doc. 8.)

In the

Recommendation, the Magistrate Judge recommends that
Respondent’s Motion for Summary Judgment (Doc. 4) be granted and
that Judgment be entered dismissing this action.

The

Recommendation was served on the parties to this action on
August 17, 2015 (Doc. 9). Petitioner timely filed objections
(Doc. 10) to the Recommendation.

In his objections, Petitioner

has requested an evidentiary hearing.

However, Petitioner has

not demonstrated good cause for an evidentiary hearing, and the
court will deny Petitioner’s request.
This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified

proposed findings or recommendations to which objection is made.@
28 U.S.C. § 636(b)(1).

This court Amay accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.@

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objection was made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation. This court therefore adopts the
Recommendation.
In addition to the analysis contained in the Recommendation,
this court adds the following to further explain why Petitioner’s
allegations are not sufficient to suggest the state court decision
was unreasonable in denying relief on the issues related to an
alleged alibi witness.
Petitioner testified at trial that he left the skating rink
at 6:00, took the victim home, stopped by his parents’ house,
and then picked up his wife at 7:00. (Respondent’s Supp. Br.,
Ex. 7 (Doc. 5-9) at 374-77.)1 Petitioner’s wife corroborated the
fact that she got off work from the police department at 7:00

All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
1

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p.m., and Petitioner picked her up at that time. (Id. at
356-57.)

Petitioner’s testimony, therefore, was not based upon

an alibi but instead that he did not commit the crime.
Petitioner now contends that counsel was ineffective for
failing to interview Keenan Headen, an attorney who received
haircuts from Petitioner and may, depending upon the records,
have been Petitioner’s customer at some point in time on the
date of the offense. (See Objs. (Doc. 10) at 9; Petition, Aff.
of Attorney Keenan Headen (Doc. 1-2) at 2-3.)
Petitioner’s testimony is inconsistent with any such
allegedly corroborating testimony which may have been offered by
Headen.

Petitioner’s testimony, and therefore his defense, was

that he was not home between 6 and approximately 7:00 p.m. on
May 4, 2011, as the victim described in her testimony.

As a

result of Petitioner’s sworn testimony, there is nothing to
support a finding that Keenan Headen was the individual
receiving a haircut as described by the victim.

Contrary to

Petitioner’s affidavit, his testimony was that he was not home
during the relevant time period.

Petitioner has no inherent

right to tell differing stories under oath in the hope that one
will constitute a defense. Petitioner has failed to make a
showing that the proffered evidence would have revealed an alibi
or, more importantly, suggest that the state court’s decision
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was contrary to, or an unreasonable application of, existing
federal law.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 8) is ADOPTED.

IT IS FURTHER ORDERED that

Respondent’s Motion for Summary Judgment (Doc. 4) is GRANTED,
that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus (Doc. 1) is DISMISSED, and that this action is
DISMISSED.
IT IS FURTHER ORDERED that Petitioner’s request for an
evidentiary hearing is DENIED for lack of good cause.
A Judgment dismissing this action will be entered
contemporaneously with this Order.

Finding no substantial issue

for appeal concerning the denial of a constitutional right
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.
This the 30th day of September, 2015.

_____________________________________
United States District Judge

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